Archive for June, 2009

Alan Rosenbaum is a revered professor of art at Virginia Commonwealth University (VCU). He shows students how to work with clay – at least, he used to, until he was disabled by silicosis. Rosenbaum was exposed to silica dust in the clay mixing room and ceramic studios of the university. The state Workers Compensation Commission last year found that the professor’s silicosis was caused by his exposure to hazardous dust and awarded him permanent disability benefits totaling $211,800.
Silica is a common mineral found in clay, sand and rock. The dust in the VCU’s Fine Arts Building came from the powder that students and staff mixed with water to make clay, as well as from scraping kilns clean of bits of clay and glaze after firing. There are intake vents directly above the five mixing machines, designed to take in dusty air and run it through a filter before releasing it outside the building. However,the vents failed to function properly, because for five years university staff members taped plastic bags over them, apparently to keep the dust from spreading elsewhere in the building. (There were complaints from woodworking and other shops that the dust migrated from the intake vents into work areas.) By blocking the vents, all the dust was contained in the ceramics area.
In addition to the vents being blocked, janitors swept the floors daily, causing the dust to fill the air for thirty minutes or more.The Hazards of Sand
Ironically, VCU art classes included instruction on the hazards of silica in clay. (Here is a fascinating, if somwhat bizarre MSDS sheet on sand. It might make you think twice about heading for the beach…) It is hardly surprising to learn that students and teachers ignored the warnings.
Air-quality tests conducted by VCU staff after Rosenbaum’s diagnosis found dust levels were 98 percent below hazardous levels — but VCU did the testing after removing plastic bags that blocked the ventilation vents. In addition to activating the vents, janitorial staff began using sweeping compound to capture fine particles before they were released in the air. In other words, mitigation of the risk was readily available, but such measures were not implemented until Professor Rosenbaum became ill.
As in Julie Ferguson’s post last week on laboratory hazards, this situation in the art studio of a major university reminds us that education is not without risk. A little learning can quickly become dangerous. The budding artist working with clay and the mason cutting a cinderblock face essentially the same hazard. Dust is dust. If we are not careful, dust can speed our return to the dust from which we all come. That’s one lesson that Professor Rosenbaum is unlikely to forget.

Earlier this year, 23 year-old research assistant Sheri Sangji suffered an excruciating death after having been engulfed in flames in a UCLA science laboratory. A drop of t-butyl lithium, a substance that ignites on contact with air, spilled on her clothing causing an instant conflagration. Sheri suffered second and third degree burns over 40% of her body. Beryl Lieff Benderly writes about Sheri’s death in Slate, raising the question of what makes academic laboratories such dangerous places to work? Benderly notes that the safety failures that led to this fatality were unfortunately not an anomaly in private academic laboratories:

The death of a healthy young woman from a chemical spill at a UCLA lab is deeply shocking. But the presence of flagrant safety violations at a major research university is no surprise. After reading about the Sangji incident and others like it, a columnist for the peer-reviewed journal Chemical Health and Safety wrote that he’d come to the “disheartening conclusion that most academic laboratories are unsafe venues for work or study.” Though no one keeps comprehensive national statistics on laboratory safety incidents, James Kaufman, president of the Laboratory Safety Institute in Natick, Mass., estimates that accidents and injuries occur hundreds of times more frequently in academic labs than in industrial ones.

In the wake of this accident, Cal/OSHA imposed a $31,875 penalty, citing safety lapses and lack of training. Benderly notes that had Sheri been a student rather than a paid technician, her death would not have been investigated by OSHA because the occupational health and safety laws that protect workers in hazardous jobs apply only to employees, not to students. The contrast between the culture, attitudes and practices of private laboratories and academia can be dramatic. Benderly describes an all-too-frequent academic machismo that can be disdainful of practices that would enhance safety, viewing them as bureaucratic and potentially stifling to academic freedom. In fairness, similar arguments and protestations have been raised by various private industry segments in response to OSHA standards, but the difference is in accountability. With most federal grants, “… applicants are routinely asked to document the steps they will take to safeguard the people and vertebrate animals they’ll be studying, but they needn’t provide any information on how they’ll protect the experimenters themselves.”
In another article for ScienceCareers, Benderly uses this incident as a springboard to discuss the issue of safety in academic laboratories in greater depth. In Taken for Granted: The Burning Question of Laboratory Safety, after examining various reports of the accident, she points to two areas that require attention, both in the UCLA lab, and frequently in other academic settings. These will be no surprise to safety professionals anywhere: better training and the need for a safety commitment that starts with the senior-most level of an organization. “The impetus to make safety a priority in academic labs must come from those able to enforce consequences.”
She is right. There are rock star academics whose research can bring huge grants and critical acclaim to a university. Safety is generally not a criteria that is evaluated as a part of their record, but it certainly should be. Benderly makes a compelling case that federal funding sources and university officials need to add safety as a criteria of evaluation to foster a culture of safety that will protect researchers as well as the research subjects.

Hank Stern is hosting Third Anniversary Edition of Cavalcade of Risk over at InsureBlog. Hank deserves a pat on the back and many plaudits for all the work he has done in founding and maintaining this carnival. While many contribute and host, he’s the real heart and soul behind this operation – so many thanks!New in the blogosphere…
In other news, we’re happy to see Business Insurance has made its debut into the blogosphere. We’ve featured reportage by Robertos Ceniceros several times on our blog in the past and he now has a workers comp-focused blog called Comp Time – check out his post today to learn about the work-related risks of Fritos. We also call your attention to Joanne Wojcik’s Benefits Beat – good stuff. There are several other topical blogs that might be of interest.Sonia Sotomayor
According to a recent article in Insurance Journal Andrea Ortega-Wells, Supreme Court Nominee Sotomayor Shows Record of Favoring Insurers. And on the same topic, we again call your attention to Michael Fox’s excellent rundown of Sotomayor’s opinions on labor and employment law.Chrysler follow-up
To follow-up on the Chrysler bankruptcy-sale issue which we’ve previously discussed, Insurance Journal reports that Fiat has agreed to assume Chrysler’s workers’ comp liabilities in Michigan. According to the Detroit Free Press, Fiat has also agreed ” … to assume responsibility for workers compensation insurance in any states where the new company has operations, such as Michigan, Indiana, Ohio and Illinois.”ToolsEmployment resources for people with disabilities – this guide from DisabilityInfo.gov has an excellent list of links to a variety of resources for jobs searches, job training, vocational rehab, and many other tools and support services.Toxipedia is a good new-found reference site, which describes itself as “a wiki-website created to bring experts and lay people together to lessen the information gap between those with knowledge on environmental and public health and those that need the information to lead healthier lives.” Among other site resource, they recently announced that they will be managing the National Library of Medicine’s World Library of Toxicology.
RIMS recently announced that they’d recently re-launched their online RIMS Buyer’s Guide, a directory of risk-related suppliers that can be searched by keyword, category and geography. It should be noted that these are paid listings.

Here’s a question that comes up frequently in our employer seminars: can you terminate an employee who is on workers comp? In general, it’s not a good idea. In many states there is a presumption that the termination is in retaliation for filing the comp claim. Nonetheless, the complete answer to the question is yes, you can, but you must do it very carefully.
The invaluable Risk and Insurance Magazine describes a case in Texas that illustrates this point nicely (Williams v AT & T, U.S.District Court, Southern Texas). Williams, a telecommunications tech, alleged that he sprained his leg stepping down from a ladder. He was a bit confused about the exact date, offering more than one in his descriptions of the incident. His claim was denied. One month later, he violated an important company policy and was suspended and then terminated. Even though his comp claim was denied, he alleged that he was terminated in retaliation for filing the claim. He sued AT & T for violating the Texas comp act.
Keep in mind, the employer must be able to demonstrate that the termination had nothing to do with the (denied) claim. In this situation, the burden of proof is definitely on the employer. AT & T presented evidence that Williams had a history of poor performance and excessive disciplinary actions for more than a year prior to the alleged injury. In other words, two key criteria of proof were met: the disciplinary problems preceeded the workers comp incident and they were thoroughly documented.
The court granted summary judgment to the employer. While falling under the protected class of employees who have filed comp claims, Williams could not establish that his termination was related to the comp claim. There were plenty of other reasons for the employer’s actions.
I often hear employers complain that they had been planning to terminate a marginal employee, but then the employee got hurt. In most cases, there is inadequate documentation of poor performance prior to the injury. These employers are stuck: any attempt to document performance issues after the injury will be viewed sceptically by the court. The termination will trigger retaliation claims.
Here is a quick tip to avoid this situation: fire marginal employees before they get hurt. Once employees are injured on the job, an employer’s options narrow significantly. Given that marginal employees are more likely to be injured – that’s part of what makes them marginal – prompt action to end their employment is an essential “best practice.”

We’ve been following the tentative steps taken by management to confront a relatively new and ubiquitous risk: the use of cell phones while driving. Most people seem to realize that cell phone use is a dangerous distraction, whether involving talking or, lord help us, texting. While surveys indicate that nearly every driver (98 percent) considers him or herself a safe driver (NOT!), fully 20 percent of drivers between 16 and 61 admitting to texting while driving and 80 percent admit to talking on their cells. What we have is a serious disconnect between risk and action. We are all just driving obliviously up DeNile.
We have focused our attention on the potential risks to corporations, who are liable for the actions of their employees “in the course and scope of employment.” Back in 2001, Dyke Industries settled a case for $16 million, involving one of their salespeople taking out an elderly pedestrian while chatting on a phone.
Maggie Jackson in the Boston Globe writes that some corporations have taken aggressive action to mitigate the risk. Back in 2005, the engineering firm AMEC prohibited employees from any and all cell phone use while operating a vehicle. DuPont, a legendary leader in safety, first required employees to use headsets and then, on second thought, forbid all cell phone use while driving. AstraZeneca has similar policies in place.Risky Business
What about everyone else? When, if ever, will managers of major and minor corporations bring the hammer down on blatantly risky behaviors behind the wheel?
We have two thoughts on the matter. First, it will take a few more tragedies to get the attention of corporate America on this risk. We all seem to labor under the delusion that multi-tasking is necessary and harmless. It is neither. Secondly, insurance companies are bound to wake up and smell this distinctly acrid brew: underwriters for general liability and fleet auto policies will begin to ask whether potential insureds have policies in place prohibiting the use of cell phones while driving. Those failing to implement such policies may find themselves scrambling for coverage. Perhaps a few innovative carriers will begin to offer discounts to employers with credible policies in place.
Employees subject to cell phone restrictions are beginning to develop new means of coping. Heck, there are support groups for everything, why not for cell phone withdrawal? Here are some of the tips that have emerged:

Plan Ahead. Call and send messages before leaving your desk.
Play relaxing music in traffic jams to reduce the frustration of “not doing anything.”
Turn off wireless devices. Still tempted? Lock them in a bag. Place the bag in the trunk.
Put a message on your voicemail saying, “I’m in a meeting or driving.”
Take a cab instead of driving, especially on out-of-town trips.
Warn people who regularly call – i.e. spouses – that you aren’t available in transit.

The Insider would add one more tip: when driving, just drive, with one relentless point of attention and with one goal in mind: arriving safely at your destination. For most of us, driving is the riskiest part of the work day, yet we treat driving as a relatively mindless means to an end. Alas, if we are not careful, driving may be the last thing we ever do.